Lecture-01

State Jurisdiction

State jurisdiction, it means the control of the state over its citizens, recourses and other
matters. It is the reflection of state sovereignty. So, state jurisdiction is the power of the state
under international law to govern persons and property by its municipal or local law. It
includes both the power to prescribe rules (prescriptive jurisdiction) and the power of
enforce them (enforcement jurisdiction).

There are two types of state jurisdiction under international law. They are:

(A) Civil Jurisdiction: sometime it is applied to the foreigners living in a state. If any
conflict arises between the civil law of different states, the matter will be settled
by private international law.
(B) Criminal Jurisdiction: Every state has the Jurisdiction to take action over the
crime and criminal even when the foreigners committed any crime within the
territory of the state. Actually international law is more preferable incase of
criminal Jurisdiction application of a state.

There are some different principles under international law of state Jurisdiction. They are as
below:

1. Territorial Principle: According to this principle state Jurisdiction works through the
state territory. A state has the full Jurisdiction over any crime, activity occurred within
the state territory. Except some exceptions a state has Jurisdiction over all persons
including foreigners and recourses of the state. This principle is accepted by all in respect
of Jurisdiction as it has less problems of application. State territory means land, sea, sky
territory, embassy of the state situated in other states, ship carrying the flag of the state,
plane, and spaceship. So a state has Jurisdiction over all these things. But according to
Md. Abdus Sattar
Lecturer, Dept. of Law
Stamford University Bangladesh
 customary law if any criminal activity has been committed in the ship of a state, but which
is anchored in the port another state, then the port state exercise the matter.

Case reference: Fijens case or Wildenhus case 1887.

There was a ship named Nurland of Belgium which was anchored in the port of New Jersy.
Mr. Wildenhus was a sailor, of that ship, who killed another sailor Fijens during that time.
New Jersy police arrested Mr. Wildenhus from that ship. USA court declared him guilty
as killer of Mr. Fijen.

Mr. Charies Mali was the consul of Belgium in New York. He applied and shows logic that,
as there is a contract between USA and Belgium according to the contract only the flag
state has the Jurisdiction over the matter. So, USA has no Jurisdiction over the matter. So
the issue of the case became that, “Is USA really has any Jurisdiction over the matter?”

It was held that, yes USA can adjudicate the matter. Because, if any harmful or any
criminal activity runs in a ship, which is anchored in any port of a country other than its
flag state then it may cause harm to the port states peace, protection, law and order
though they have a contract. So, state Jurisdiction covers these matters. It is of two types.

(a) Subjective Territorial Principle: when a state try to adjudicate the persons of
another state, then that is called subjective Jurisdiction.

(b) Objective Territorial Principle: when a state try to adjudicate the persons of its
own state, where ever he commits the crime then that is called objective Jurisdiction.

2. Nationality Principle: The relation between state and individual is called nationality.
According to this principle over a person his own state has Jurisdiction, where ever he
resides in the world. But sometimes it is also considered that, the state in which the
person resides has the Jurisdiction. Crime where ever committed, it does not matter. The
Jurisdiction relies on the state of the person who committed it. But it does not mean that
the state in which the act has been committed has no Jurisdiction. Actually, territorial

Md. Abdus Sattar

Lecturer, Dept. of Law
Stamford University Bangladesh
 principle and nationality principle works parallel. Sometimes two states may have
Jurisdiction over a matter committed by a person having dual citizenship.

Exercising state Jurisdiction through the medium of person is of two types:-

(i) Active Nationality Principle: The person committed the crime, his
national state has the Jurisdiction to adjudicate him, and it is called active
nationality principle.

(ii) Passive Nationality Principle: The person who suffered damage, his
national state has the Jurisdiction over the matter. It is called passive
nationality principle.

Case reference: Cutting case, 1886.

Mr. Cutting, an American defamed a Mexican citizen in a newspaper of Texas, some copies of
the newspaper went to the Mexico, and some Mexican citizen read the newspaper. It was a
crime under section 184 of Mexican penal code. After some days, Mr. Cutting went to Mexico,
and then Mexican police arrested him. USA said that, as he is an American, Mexico has no
Jurisdiction over him. But Mexico shows the Passive Nationality Principle. So Mexico has the
Jurisdiction over the person. But USA does not support or accept it.

There was another case in this respect, Govt. of India Vs. U.C.C. Corp 1987 (Bhopal case).

Lecture-02

Md. Abdus Sattar

Lecturer, Dept. of Law
Stamford University Bangladesh
3. Protective Principle: A state has Jurisdiction over the matter which is of criminal nature,
harmful and threat to the protection of that state which may have been committed by
foreigners in any foreign countries.

Case reference: Lord Haw Haw case, 1946

Mr. Joyce took British citizenship in 1933, and then he went to Germany during 2nd world
war. He joined German Radio in the name of Lord Haw Haw and made false accusation
against England. After the war the British military forces find him. His papers said that, he is
an English news reader in German Radio. He demanded that, he is a German citizen, though
he had no paper.

The court convicted him as guilty. Then he appealed appellate court give some judgment.
Then the matter reached to House of Lords,

Issues are that, whether England has the Jurisdiction to try a matter committed outside the
country by a foreigner or not? Before the war whether he was obedient to England govt. or
not?

House of Lords give the same decision. The main fact is that, he was British citizen for many
days and later time, he came to country and joined with the enemy of the country, it is not a
matter to consider, whether he would return to England or not.

4. Universal Principle: There are some crimes upon those all states have equal
Jurisdiction. These crimes are internationally recognized as international crime. Through
the force of international law, Jurisdiction is open to all; any state can adjudicate such
crimes impartially. For example, Pirates, war criminals genocides etc. It will be in the
interest of international community to extend the principle of universal Jurisdiction of
some other international crimes.

Md. Abdus Sattar

Lecturer, Dept. of Law
Stamford University Bangladesh
After the World War II, Nuremberg Tribunal was established. This pointed out three crimes
as international universal crime.

(i) Violation of peace and inequality

(ii) Violation of war law
(iii) Works against humanity

Above three crimes are recognized all over, any state can adjudicate and punish these
criminals.

Case reference: Eichman case, 1961:

Eichman was a German; he was the German Gestapo officer, who directed ‘The Final
Solution’ by killing 42, 00,000-46, 00,000 Jews. After the war he flees from Germany and
went to Argentina by false identity. He took the name Ricardo Kumert and changed his face
by plastic surgery and took agriculture as his profession. But in 1960, Mossad agent of Israel
found him and plundered him to Israel. Israel started his adjudication. He was convicted as
guilty and death sentence was given. He appealed, but same decision was given. He was
punished, his lawyer showed three defence:

(i) He was foreigner;

(ii) During world war II, there was no country named Israel;
(iii) As he was plundered, so his adjudication is not lawful.

Issue: whether Israel can adjudicate Eichman or not?

But the court said that, Eichman is a war criminal, so every nation has the jurisdiction to
adjudicate him and unlawful plundering does not affect the application of the universal
principle.

Md. Abdus Sattar

Lecturer, Dept. of Law
Stamford University Bangladesh